Superdrug Stores Plc V. Network Rail Infrastructure Ltd
| Jurisdiction | Scotland |
| Judge | Lord Kirkwood,Lord Osborne,Lord President |
| Neutral Citation | [2006] CSIH 4 |
| Court | Court of Session |
| Published date | 27 January 2006 |
| Docket Number | XA90/05 |
| Date | 27 January 2006 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Osborne Lord Kirkwood | [2006] CSIH 4 XA90/05 OPINION OF THE LORD PRESIDENT in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause SUPERDRUG STORES PLC Pursuers and Appellants; against NETWORK RAIL INFRASTRUCTURE LTD Defenders and Respondents: _______ |
Alt: Peoples, Q.C.; MacRoberts, Glasgow (Defenders and Respondents)
27 January 2006
[1] This is an appeal from the sheriff principal who, on 26 July 2005, refused an appeal from the sheriff, who had, on 27 January 2005, dismissed as out of time an application made to him by way of a summary cause in furtherance of section 1(1) of the Tenancy of Shops (Scotland) Act 1949. An appeal lay from the sheriff to the sheriff principal on a point of law (Sheriff Courts (Scotland) Act 1971, section 38(a)), the prescribed mode of appeal being by stated case. An appeal lies from the sheriff principal to this court on a point of law if the sheriff principal certifies the cause as suitable for such an appeal (Sheriff Courts (Scotland) Act 1971, section 38(b)). The sheriff principal has so certified the present cause.
[2] I am obliged to Lord Osborne for his narrative of the background circumstances and of the submissions of counsel. Subject to certain matters, to which I subsequently refer, I adopt that narrative. As, however, I have the misfortune to disagree with your Lordships in the result, it is necessary to explain my reasons for doing so.
[3] The stated case signed by the sheriff contained 14 questions, each purportedly a question of law. The sheriff principal criticised (in my view with good reason) the form of many of these questions. Some of them he found to be unanswerable and accordingly declined to answer. The eight which he did answer included question [1], which was in the following terms:
"On the facts found in Finding-in-Fact (17) that the Summons was received by the Sheriff Clerk's office and stamped marked 'Lodged' and dated on 16 December 2004, did the sheriff err in law in holding that the pursuers had not applied timeously in terms of the Act?".
These eight also included question [14], which was in the following terms:
""Did the sheriff err in law in deciding that authentication of the summons did not determine the date upon which an application is made to the Sheriff for the purposes of section 1(1) of the Act?".
Both these questions to the sheriff principal answered in the negative. These answers in effect rejected each of what might be described as the primary legal propositions of the parties, namely, (1) that the events of 16 December 2004 of themselves pointed conclusively to the appellants having "applied" to the sheriff on that date (the appellants' contention) and (2) that the appellants could not be said to have so "applied" until the summons was authenticated on 17 December 2004 (the respondents' contention).
[4] The sheriff principal answered the six remaining answerable questions in the affirmative. These questions, in a variety of formulations, put in issue whether, in determining the date on which the pursuers had "applied" to the sheriff, it was legitimate to have regard to events both on 16 and on 17 December.
[5] Before addressing the sheriff principal's grounds of decision I would make two observations. First, the appellants' sole ground of appeal to this court is in the following terms:
"That the Sheriff Principal erred in law in his determination that the presentation by the pursuers and acceptance of the summons on 16 December 2004 did not amount to a timeous 'application' in terms of the Tenancy of Shops (Scotland) Act 1949".
That formulation is itself contentious. I set out below the sheriff principal's reasoning. While in that reasoning he accepts (and determines) that there was on 16 December "presentation" of the summons by the appellants, I can find no reference to any determination by him that there was "acceptance" of the summons on that date. If by "acceptance" is meant only the circumstance that on that day a clerk in the sheriff clerk's office took into his hands a summary cause summons and then stamped that document "Sheriff Clerk, Glasgow LODGED 16 DEC. 2004" before it was returned to the appellants' representative (Mr. Donnelly), there is no difficulty. If, however, by "acceptance" is meant more, I can find no basis for it as a feature of the sheriff principal's determination.
[6] The second observation is this. The sheriff found as a fact that the summons had been taken away by Mr. Donnelly on 16 December. Despite a submission to the contrary made to him by counsel for the appellants, the sheriff principal held that that finding could not be interfered with. Counsel for the appellants had also submitted to the sheriff principal that he should conclude that, although the sheriff had made no finding of fact as to what had happened to the Form E200 when Mr. Donnelly left, the only inference that could be drawn was that it had remained in the sheriff clerk's office. The sheriff principal, having considered the sheriff's account of the evidence led before him and his evaluation of it, was unable to accept that submission. In my view, he was clearly entitled to do so. Accordingly, so far as concerns the whereabouts of the Form E200 between 16 and 17 December (and any inference which might be drawn as to the ability of the sheriff clerk, prior to the latter date, legitimately to rely on that form as a basis for recovering the chargeable fee), the matter is simply not proved one way or the other.
[7] The sheriff principal rejected the respondents' contention that it was authentication of the summons which determined the date upon which the application was made to the sheriff. I agree with that conclusion and with the sheriff principal's reasoning which led to it. I find it unnecessary to say anything further on that matter. The sheriff principal continued:
"(52) What is meant by 'apply' in the context of section 1(1) of the [1949] Act? In my opinion, it means the presentation of a procedurally valid summons accompanied by the appropriate fee to the sheriff clerk together with a request, implicit or explicit, that that summons should be processed. These are all matters within the sole control of the applicant and do not depend in any way on anything done by the sheriff clerk. This definition is therefore entirely compatible with the dicta in the cases under the Company Directors Disqualification Act 1986 to which I was referred by counsel for the appellants. I have emphasised the latter part of the definition because it is essential. Unless such a request is made the presentation of the summons is meaningless. Of course, in most cases, the presentation itself will amount to an implicit request to process the summons, but in some cases something more will be required.
(53) Looking to that definition, can it be said that what happened on 16 December in the present case amounted to an application? In my opinion, it can not. It is true that a summons in the appropriate form was presented and that it was accompanied by a form which could be used as the basis for payment of a fee. But the appellants' law agents failed to give any direction to the sheriff clerk that the summons should be processed. Findings 24-26 are vital findings in this context. The person to whom Mrs. Bain spoke in the office of the appellants' solicitors said that 'It was likely that someone would be coming in the next day'. [Finding 24] This demonstrates a degree of uncertainty. It could not, contrary to the submission of counsel for the appellants, amount to a request to Mrs. Bain to fix a hearing before a sheriff for the following day. The sheriff has found (Finding 25) that Mrs. Bain left to the law agents the decision whether the summons should be placed before a sheriff. That decision, whenever it was made, was clearly not communicated to the sheriff clerk until the 17th. Thereafter Mr. Donnelly took the summons away with him [Finding 26] thus reinforcing the impression that no decision as to future procedure had been taken". (The references in square brackets have been added).
At para. (56) the sheriff principal added:
"The fact that a date stamp was imprinted on the summons on 16 December is of no significance. That is all that was done. No steps were taken to institute any further procedure ... ".
[8] In my view the sheriff principal's reasoning discloses no error of law. As he emphasised (and as I understand your Lordships accept) the words in italics are, in my view, essential. Counsel for the appellants submitted to us that the sheriff principal's formulation amounted to an error in law. I am unable to accept that submission. I accept that, if a summary cause summons, having been presented, is left in the hands of officials of the court with a view to it being authenticated, whether by the sheriff clerk or by the sheriff, a court could, and probably should, conclude that an application to the sheriff had been made as from the time when it was so left. That might also be so in circumstances where, albeit the summons is removed an unequivocal request is made to fix a hearing before the sheriff. That is because from that point onwards the person seeking to make the application has taken all the steps which he can take to make that application; delay beyond that point is outwith his control. There may, however, be circumstances where notwithstanding "presentation", any future progressing of the summons to authentication remains in the hands of the would-be applicant.
[9] In the present case, if the sheriff principal's formulation was sound in law, as in my view it was, it remained only for him, having evaluated the facts as set forth in the stated case, to apply that formulation to them. No error of law is, in my view, disclosed in that exercise. It was...
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